Released: January 23, 2006

New legislation proposed to restrict fair use

Source: By Wes Phillips, Stereophile

On our regular visit to the Electronic Freedom Foundation’s (EFF) Deep Links website last Friday, we were alarmed to learn of proposed US Senate broadcast flag legislation that includes provisions to limit fair use to “customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law.”

That would seem to allow fair use, so why is it cause for alarm? The EFF’s Fred von Lohmann has a crushingly simple response, “Had that been the law in 1970, there would never have been a VCR. Had it been the law in 1990, no TiVo. In 2000, no iPod.” Von Lohmann argues that fair use was designed to permit new uses for technology, uses that hadn’t been conceived of previously—such as Sony’s discovery after the invention of the VCR that most people used it to time-shift television programs rather than play pre-recorded videocassettes, which is the way the company had assumed its product would be used.

The proposed legislation, sponsored by Senator Gordon Smith (R-OR), would retroactively ratify the FCC’s broadcast flag regulations, which required content protection mechanisms in all future televisions. The FCC restrictions were rejected by the DC District Circuit Court of Appeals last July.

Senator Smith’s bill would also grant the FCC authority to regulate the design of digital radios, which would include both terrestrial HD Radio and XM and Sirius satellite radio, over which it does not now have authority.

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